Dyanna C. Pepitone and Douglas Parker v. the Zoning Board of Adjustment of the Town of Westfield

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

October 12, 2012

DYANNA C. PEPITONE AND DOUGLAS PARKER, PLAINTIFFS-APPELLANTS,v.THE ZONING BOARD OF ADJUSTMENT OF THE TOWN OF WESTFIELD, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1427-11.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 27, 2012

Before Judges Simonelli, Koblitz and Accurso.

Plaintiffs Dyanna Pepitone and Douglas Parker (collectively plaintiffs) appeal from the September 27, 2011 Law Division order, which granted summary judgment to defendant Zoning Board of Adjustment of the Town of Westfield (Board), and dismissed the complaint in lieu of prerogative writs with prejudice. We affirm.

Plaintiffs own property in Westfield located in the RS-12 single-family residence zone. There is a one-car detached garage on the property. Plaintiffs' property became non-conforming in 2009 with the passage of an amendment to Westfield's Land Use Ordinance Article 11, §11.06E.14, which requires that "[e]ach dwelling [in the RS-12 zone] shall have at a minimum a 2-car garage." Ordinance Article 19, §19.02, the so-called "grandfather provision," provides that "[a]ny non-conforming use, building or structure which lawfully existed at the time of the passage of this ordinance may be continued and any such existing non-conforming building or structure may be reconstructed or structurally altered provided it shall meet the requirements of this article." Thus, property with one-car garages could continue the non-conformity. However, Article 19, §19.03A provides that "[a]ny building, structure or use of land which is non-conforming because of use shall not be enlarged, extended or changed to another non-conforming use in any manner whatsoever." Article 19, §19.03B provides that

There shall be no structural alterations made to any non-conforming building or structure that is non-conforming because of use. Structural alterations may be made in a building or structure which is non-conforming because it fails to comply with height, area, yard, off-street parking or other like requirements of this ordinance, so long as the structural alteration does not extend or enlarge the non-conformance.

Thus, property owners seeking to enlarge, extend or change their property to another non-conforming use, or make structural alterations to any non-conforming building or structure must comply with §11.06E.14.

Plaintiffs sought to construct an addition to their home without also constructing a two-car garage. The town planner advised plaintiffs that because their property was non-conforming under §11.06E.14, they may either construct a two-car garage or seek variance relief. The zoning officer then issued a violation notice, advising that the property was non-conforming, the proposed construction violated §11.06E.14 and must cease, and plaintiffs may apply to the Board for variance relief.

Plaintiffs filed an Article 7, §7.02B appeal with the Board, seeking a determination that the zoning officer's decision was wrong. Plaintiffs argued, in part, that the zoning officer failed to consider that §19.02 granted a continuance for their one-car garage. In the alternative, plaintiffs applied for a "C" variance pursuant to Article 7, §7.01C.

There were extensive discussions about the zoning officer's decision at the January 10, 2011 Board meeting, which plaintiffs attended. The town planner explained the zoning officer's decision as follows:

[T]he zoning officer interprets [§11.06E.14] to state that a property must have a two-car garage in the RS-12 zone. This property does not have a two-car garage. The application for an addition to this property is expanding the building envelope. It's expanding the lot coverage wherein the property is deficient because it only has a one-car garage.

So the issue of [§19.03B] states . . . there shall be no structural . . . alterations made to any non-conforming building or structure that is non-conforming because of use. It goes on to say structural alterations may be made in a building or structure which is non-conforming because it fails to comply with height, area, yard, off-street parking, or other like requirements of this ordinance, so long as the structural alteration does not extend or enlarge the non-conformance.

By increasing the building envelope or the building footprint, you're taking away land or you are consuming land under lot coverage criteria and therefore, it affects the ability to provide for a two-car garage. Now, in this case it's not exceeding the lot coverage, but it is expanding the lot coverage.

If you look at the right side of the existing house, existing is a family room and this family room extends into the required set back. Now, what the applicant is proposing is to convert that family room into a breakfast and office area within the existing confines of that building footprint. [§19.03B] says you can do that. It's a pre-existing non-conforming part of the house because it extends into the set back, but the house itself is not being expanded. It's being altered internally for, to create different rooms. That is what [§19.03B] refers to. It says that structural alterations may be made in a building or structure which is non-conforming because it fails to comply with height, area, yard in this case or other like requirements of this ordinance so long as the structural alteration does not extend or enlarge the non-conformance.

So that is how Article 19 is applied. And I think specifically to this application here is a perfect example. But because the property does not have an existing two-car garage and it only has a single car garage, it doesn't meet the requirements of the ordinance and therefore variance relief in the zoning officer's opinion had to be sought by the property owner.

The town planner and Board attorney explained that §19.02 permits the continuance of a non-conforming use, building or structure, but there must be compliance with §11.06E.14 when a property owner seeks to alter the property. The Board attorney further explained that §19.03B applied in this case because the non-conformity related to the property's use.

The Board voted to deny plaintiffs' §7.02B appeal and grant a "C" variance. In its resolution dated February 14, 2011, the Board summarized what had occurred at the Board meeting regarding plaintiffs' §7.02B appeal, and concluded that the zoning officer correctly decided that §11.06E.14 required plaintiffs to construct a two-car garage or obtain variance relief. The Board found that plaintiffs established the requirements for a "C" variance, and granted the variance. Plaintiffs have since completed the addition without constructing a two-car garage.

Plaintiffs filed a complaint in lieu of prerogative writs. The Board filed a summary judgment motion, arguing that plaintiffs failed to state a claim upon which relief can be granted because they received a variance, and thus, suffered no injury or deprivation of their property rights or use of their property. In opposition, plaintiffs did not challenge the validity of the ordinance or the Board's decision to grant a variance; rather, they challenged the legal basis on which the Board denied the §7.02B appeal, the resolution's failure to reveal that basis, and the Board's interpretation of the ordinance. Plaintiffs also argued that the Board's decision harms their property rights and gives it the automatic right to deny future development on their property, and the variance, which is a one-time waiver, "does nothing to assuage" this damage.

In an oral opinion, Judge Cassidy granted the Board's motion and dismissed the complaint with prejudice, finding that the zoning officer and Board correctly interpreted the ordinance, and variance relief was the correct remedy in this case. The judge concluded that plaintiffs were estopped from alleging a deprivation of property rights or continuing harm because they did not challenge the ordinance, and the matter was moot because plaintiffs applied for and were granted a variance, which resolved the dispute. She also concluded that "the ordinance . . . was drafted in such a way that would require the plaintiffs to . . . apply for variance relief under the specific sets of circumstances that were presented to the zoning officer and to the board under the . . . facts of this particular case." This appeal followed. On appeal, plaintiffs recycle the arguments made before the Board and Judge Cassidy, and they also argue that Judge Cassidy committed various errors.

Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 491 (2005); Tymczyszyn v. Columbus Gardens, 422 N.J. Super. 253, 261 (App. Div. 2011), certif. denied, 209 N.J. 98 (2012). Thus, we consider, as Judge Cassidy did, "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008). We review issues of law de novo and accord no deference to the trial judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009).

We have reviewed plaintiffs' contentions in light of the record and applicable law and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Judge Cassidy correctly granted summary judgment, and we affirm substantially for the reasons she expressed in her oral decision rendered on September 27, 2011. However, we make the following brief comment.

The Board's grant of variance relief sets no precedent and does not adversely affect plaintiffs' future property rights. Plaintiffs cite no authority to the contrary. Plaintiffs are free to challenge any future interpretation of the ordinance.

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